I. Background

Kuwait is a constitutional monarchy with a parliamentary
system of government—the 50-seat parliament is known as the National
Assembly. Although political parties are formally banned, several political
groups act as de facto parties to which members of parliament (MPs) are
affiliated, such as Bedouins, merchants, and Sunni and Shi'ite groups, as well
as Islamists and secular leftists and nationalists.[5]

The National Assembly may set up standing and ad-hoc
committees whose members are selected from within the assembly. In 2006
Islamist MP Waleed Al-Tabtabai formed an ad-hoc parliamentary committee for the
“Study of Negative Phenomena Alien to Kuwaiti Society.” Although
the committee was originally established only to study what its members deem to
be “negative social phenomena,” it also proposes bills to the
National Assembly. One such bill was the amendment to article 198.

The committee raised much controversy, particularly during
the 2008 term when the Islamists comprised a majority of the parliament. While
its proponents claim that the committee’s mandate is to uphold
traditional Kuwaiti values, others see it as a precursor to a Saudi-style Committee
to Promote Virtue and Prevent Vice, an authorized law enforcement agency tasked
with upholding public morality. Critics accuse the Kuwaiti committee of
attempting to impinge on constitutionally guaranteed freedoms, citing its
record of trying to impose strict controls on private parties and gatherings,
challenging the legal definition of “privacy” in order to further
regulate people’s personal lives and conduct, opposing TV shows and
concerts that they consider immoral.

These opposing views highlight the increasing rift between
Islamists and liberals in Kuwait’s National Assembly. However, while some
laws that the committee proposed faced considerable opposition (such as banning
“revealing” swimwear for women), the amendment that Tabtabai tabled
criminalizing “imitating the opposite sex” was passed unanimously
by the 40 MPs present. The issue was seen as insignificant in the larger
political battle.

The National Assembly, and its passing of the amendment to
article 198, cannot be seen in isolation from these wider social and political trends.
As visible symbols of gender transgression who challenge gender norms by
presenting as what appears to be the “opposite sex”, transgender
persons serve as easy targets against whom the state can flex its moral muscle.

While it is primarily transgender women who face criminal
punishment, the social control of transgender women and boyat takes the form of a whole gamut of religious arguments that cast them as sinners who “reject God’s
creation,” in addition to “medical” and
“biological” arguments that regard them as victims who need to be
healed or treated.[6]
The two discourses sometimes overlap, and religious dogma and traditional mores
rather than science and modern medicine inform much medical practice on the
issue.

In religious arguments against gender transgressive behavior
and presentation the notion of al-fitra(natural constitution) figures quite prominently, resting on the assumption that men imitating women (or vice-versa) violates the natural constitution of human beings. Effeminate men, boyat, and transgender people are thought to contribute to the spread of corruption and the disintegration of society by upsetting this balance.[7]

Many health care professionals and Kuwaiti religious leaders
suggest that “treatment” and “correction” options for
transsexual individuals should aim to restore them to their “natural
state.”[8]
One psychologist suggested injecting testosterone into male to female
transsexuals, forcing them to live as men for a period of time: if that
doesn’t work, she said, they might be allowed to transition into women.[9]

However, several prominent doctors have advocated for the
rights of transgender people, including Dr. Hasan Al-Mousawi, a professor
of psychiatry at Kuwait University and Dr. Haya Al-Mutairi, head of the
psychiatry department at the Psychological Medicine Hospital, both of whom
oppose criminalization.[10]

*
* *

The following sections examine the broader socio-political
environment and climate of gender regulation in which the amendment to article
198 was passed. The law is analyzed through a human rights perspective, followed
by a discussion on debates within Islamic jurisprudence on the issue of SRS and
legal gender change in identity.

Policing Gender

Gender and sexuality often become foci for broader anxieties
in times of rapid social and political change.[11]
The criminalization of “imitating the opposite sex” in Kuwait is
one element of a broader regime of gender regulation that began to take hold
after 1992, when tensions between “liberal” and “traditionalist”
Kuwaitis after the Gulf War intensified as each tried to establish their status
as influential political entities.[12]

The battle over women’s rights and role in society
constituted one of this conflict’s most prominent arenas, and presented
an opportunity for traditionalists and Islamists to join forces.[13]
According to Kuwait scholar Mary Ann Tétreault:

While tribalists were anxious to keep their daughters
obedient and marriageable, Islamists hoped to diminish female competition for
jobs available to new graduates during a slow economy. Their shared vision of
the globalization threats presented by women whose credentials and skills,
including foreign language proficiency, generally exceeded those of men,
contributed to ad hoc violence in policing the behavior of women unwilling to
submit to conservatives’ demands and expectations.[14]

The events outlined below trace some of the major
legislative milestones in the social and political regulation of gender in
Kuwait:

1992-1996:

Towards the end of the term of the first legislature
elected after the Kuwait’s liberation from Iraq, the battle over
women’s roles left their rights so undermined that Islamists in the
National Assembly were able to pass a law requiring gender segregation in
universities. It remains in effect to this day, despite opposition from
liberals.

2005:

Tensions flared after the National Assembly’s
landmark decision to grant women the right to vote and run for office in
local and parliamentary elections, a time of dwindling of Islamist influence
in the National Assembly. Conservatives opposed the decision, and inserted a
last-minute rider that "women as voters and MPs" must follow Sharia
without specifying precisely where or how. Islamist and tribal MPs had
previously successfully fought off women’s suffrage proposals.
Responding to the new law, Islamists tried to enact further legislation to
restrict women’s roles in the political sphere and tighten control over
“subversive” or “immoral” gendered behavior.

Kuwait’s second female cabinet member, Nouria
al-Sbeih, caused an uproar when she took the oath of office after refusing to
wear the hijab (headscarf or veil) worn by many Kuwaiti women. Although it is
not mandatory, conservative MPs attempted to use this refusal to discredit
female politicians.

2008:

Twenty-seven of the 275 candidates in the parliamentary
elections were women. None win.

2009:

Kuwait held parliamentary elections for the third time in
three years. Of 16 female candidates who ran, four won, becoming Kuwait's
first female lawmakers.

Two female MPs, Dr Rola Dashti and Aseel Al-Awadhi,
appeared in the assembly without wearing the hijab. Three Islamist MPs
immediately protested, citing the Sharia rider that was passed with the
electoral law. As a result, Dashti tabled an amendment demanding the rider be
dropped. The Constitutional Court ruled that the rider in the
election law is not specific and so can be interpreted in different ways. The
court dismissed a case brought by a Kuwaiti man to have Dashti and Al-Awadi
dismissed from the assembly for violating the election law.[15]

2010:

Islamist parliamentarians who cater to a mainly
conservative, tribal constituency with proposals for “morality”
legislation, introduced two laws. The first, commonly known as the
“bikini law,” sought to criminalize revealing swimwear for women.
The second aimed to regulate plastic surgery, with specific articles banning
sex reassignment surgery, and formally introduced a ban on gender correction
in legal papers.

2011:

In January, a parliamentary committee rejected the “bikini
law,” arguing it is unconstitutional.[16]
The plastic surgery bill has not yet passed at this writing.

Media have taken an active role in policing gender. Since
2007 several national talk shows and TV programs have discussed the issue of the
“third sex” and the “fourth sex” (references to gender
non-conforming men and women respectively) as a social vice that needs to be
eliminated.[17] Some
journalists, lawyers, parliamentarians, and doctors have opposed this
demonization.

An early critic of the amendment to article 198 was
Hussein al-Abdallah, a columnist for the Kuwait daily Al-Jareeda, who wrote that the
elasticity in the wording of the bill would “violate personal freedoms
under the pretext of upholding the law.”[18] MP
Adnan Abdulsamad, a member of the National Assembly’s Human Rights
Committee, told Human Rights Watch that imprisoning transsexuals was unjust,
and they should receive appropriate treatment rather than be sent to prison.[19] Dr.
Aseel Al-Awadi, one of the four female parliamentarians and a staunch advocate
of women’s rights, also spoke out against imprisonment of transgenders
under amended article 198, calling it “a superficial handling of the
issue,” and advocated treatment instead.[20] She
told Al-Rai
newspaper:

In terms of [transsexuals’] rights as citizens, we
need to separate between our opinions of their behavior and our professional
duties. A doctor should not deny treatment to a person because he or she
appears to be “imitating.” Likewise, a police officer must listen
to citizens’ complaints even if he disagrees with their dress or behavior.[21]

Given this long-running controversy within government and
society over the appropriate roles of men and women, it is not surprising that
parliament would turn its attention towards those who visibly challenge these
gender roles, such as transgender women, by passing a law criminalizing gender
non-conforming appearance, the victims of which have almost invariably been
transgender women.

Problems with the Law

The amendment to article 198 is problematic for several
reasons. First, it is arbitrary in its application, because it fails to define
concrete, specific criteria for what constitutes the offense of
“imitating” the opposite sex, effectively allowing police absolute
discretion in determining the criteria for arrest. Second, it fails to protect
even those who have undergone full SRS, because there is no provision for
allowing those who have undergone SRS to change their legal identity. Third, it
effectively criminalizes transgender people even though the Kuwaiti Ministry of
Health recognizes Gender Identity Disorder as a legitimate medical condition. Fourth,
it constitutes clear discrimination against transgenders as the law directly
targets individuals whose gender identity and presentation does not correspond
with the gender assigned to them at birth.

The amendment to article 198 does not state what constitutes
“imitating a member of the opposite sex,” giving the police and the
courts complete discretion in determining whether someone’s appearance or
actions constitutes “imitation of the opposite sex.” Human Rights
Watch spoke with transgender women and biological males who identify as men who
say police have arrested them for such arbitrary things as “having a
smooth face,” wearing “a feminine watch,” and having “a
soft voice.” Many transgender women reported they had started dressing as
men to avoid arrest, but even with dishdashas,
baggy sweatshirts, long hair tucked under caps, or jeans and sneakers, they
were still unable to avoid arrest. Police suspicious of
“feminine-looking” males would sometimes go so far as to check
whether an individual was wearing female underwear and arrest them on that
basis. For Kuwaiti police, it seems there is no way for transgender women not to break
the law.

The amendment’s author, MP Waleed Tabtabai, claimed
that it was designed to target “members of the third sex.”[22]
However, Human Rights Watch has documented cases where police have also
arrested male-identified biological men under the article. Ahmad, a 19-year-old
man, told Human Rights Watch:

I don’t know why I was even arrested; I am a man, I
even had a full beard at the time! In June 2010, I was ordering some food from
a drive-through and a police patrol stopped me. They beat me in the street in
broad daylight and then took me to the station where they cursed me and beat
me. I was finally released three days later after I was forced to sign a
confession and promise that I wouldn’t imitate women again. How many
women do you know have beards?[23]

Sout al Kuwait, a Kuwaiti human
rights group that has criticized the law, asked:

Is a man’s long hair an imitation of women? What
about dyeing the hair or the beard with henna? Wearing kohl(a black eye cosmetic)? A lot of
these practices are part of Arab heritage and some of them were even practiced
by the prophet.[24]

On July 14, 2010, Al-Jareeda
daily newpaper reported that the public prosecutor, Hamed al-Othman, urged
members of the National Assembly’s legislative committee to clearly
define the parameters of what constitutes “imitating the opposite
sex.” The newspaper reported that committee members promised to take
al-Othman’s recommendations into consideration, either by altering the
text of the amendment or in an explanatory memorandum.[25]
Neither has happened, and as al-Othman predicted, the misapplication of the law
has led to many human rights violations.

Furthermore, the law allows the prosecution of individuals
who have undergone SRS because there are currently no legal provisions in
Kuwait that allow individuals to change their legal identities. Many
transsexuals in Kuwait have had partial SRS in other countries such as
Thailand, Syria, and Lebanon, while others have undergone complete sex
reassignment surgery. Between article 198 and the refusal of Kuwaiti courts to
recognize SRS, these individuals are left in a state of legal limbo. There is
virtually nothing they can do to avoid arrest, because although they are now
physically female, their identity cards continue to identify them as male. Rola,
a 32-year old transsexual woman who had undergone complete sex reassignment
surgery in 2004, was arrested five times since the law was passed. The first
time she was arrested, on July 23, 2008, she spent two months in pre-trial
detention before being declared innocent by a Kuwaiti court. Despite this
ruling, police arrested her another four times and released her after
humiliating her at police stations.[26]

MP Tabtabai, author of the amendment to the law, recognizes
the contradictions of this law:

The decision to legally change one’s gender in
one’s identity papers in cases of complete transition should be based on
a complete examination and report by a doctor.… In those cases, they
should be referred to mental health professionals rather than be imprisoned.[27]

In one case that Human Rights Watch documented, police
arrested a transgender woman who had undergone complete sex reassignment
surgery but had not been able to change her legal documents for
“imitating the opposite sex.” Although she was never brought to court,
the police shaved her head and forced her to sign a declaration stating that
she would never imitate the opposite sex again.[28]

In April 2004 a landmark ruling by a lower court in Kuwait
allowed Amal, a Kuwaiti transsexual woman who had undergone complete sex
reassignment surgery in Thailand, to change her legal documents from male to
female. The verdict was based on a number of medical
reports and a forensic examination carried out on the complainant as well as
religious edicts of Al-Azhar in Cairo allowing for sex reassignment surgery in
specific cases.[29] In October 2004 the government filed an appeal, supported
by a group of Islamist lawyers and Amal's father, who told the court the
verdict brought “shame to his family,” and the initial decision was
overruled and Amal continues to be identified as male in her legal documents.[30]As there is no law in Kuwait governing sex-change cases, judges
base their verdicts on personal conviction.

GID is the formal diagnosis that psychologists and
physicians use to describe persons who experience significant gender dysphoria
(discontent with their biological sex and/or the gender they were assigned at
birth). The International Statistical Classification of Diseases and Related
Health Problems (ICD-10 CM) and Diagnostic and Statistical Manual of Mental
Disorders (DSM-IV TR) classify GID as a medical disorder. Some authorities do
not classify GID or gender dysphoria as a mental illness, describing it instead
as a condition for which medical treatment is sometimes appropriate.

The Ministry of Health officially has recognized gender
identity disorder in individuals who have received such a diagnosis by the
state-run Psychological Medicine Hospital as a legitimate medical condition and
issues formal letters to that effect, which many transgender women carry with
them at all times. Yet the law does not exempt from arrest transgender people
who have received such a diagnosis.

Regardless of medical status, prosecuting individuals
because of their gender identity and/or presentation constitutes discrimination
against a protected social group. In Kuwait, transgenders are arrested for who
they are, not for what they do. The International Covenant on Economic, Social
and Cultural Rights (ICESCR), to which Kuwait is a signatory, obliges each
State party “to guarantee that the rights enunciated in the Covenant will
be exercised without discrimination of any kind as to race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status”. The Committee on Economic, Social and
Cultural Rights has expressly designated gender identity as prohibited grounds
for discrimination.

However, even receiving this diagnosis does not guarantee
treatment, for which there is no established or recommended path. MP Muhammad Hayef,
a member of the assembly’s Committee for the Study of Negative Phenomena,
said in a TV interview in 2008 that members of the “third sex”—as
transgender people are widely called in popular culture—should not be
imprisoned, and called for establishing treatment centers instead. According to
Hayef, “Prison increases the spread of this phenomenon but doesn’t
treat it.”[31]
Despite this perspective, neither Hayef nor any other MP has tried to end the
arrests, repeal the amendment, or offer any concrete alternative, such as
allowing those diagnosed with GID to undergo sex reassignment surgery and
gender correction.

Sara, a transgender woman, decried the hypocrisy of such
statements:

One minute they say we shouldn’t be imprisoned, the
next minute they’re on TV saying that the police need to clean the
streets from such filth…. Who is going to hold them accountable for their
words?[32]

Kuwaiti human rights organization Sout Al-Kuwait has argued
that the amendment to article 198 contravenes article 10 of the Kuwaiti
constitution, which stipulates that the “state cares for the young and
protects them from exploitation and from moral, physical and spiritual neglect.”[33]It
argued that punishing an individual for a medical condition violates her basic
rights and that the state failed to recognize that many of those accused of
“imitating a member of the opposite sex” suffer from gender
identity disorder, treatment of which “can only happen through sex
reassignment surgery.”[34]

Although the state-run psychiatric hospital has issued GID
diagnoses, the Kuwaiti police, courts, and other government branches do not
recognize it to be a legitimate reason not to arrest and convict people. According
to lawyer Abbas Ali, who has defended several cases involving transgender women
and has spoken publicly about the issue, innocent verdicts are issued in court
cases where there is evidence of a GID diagnosis,[35]
although one transgender women told Human Rights Watch that the court ignored her
GID diagnosis and sentenced her to six months in prison.[36]

Like many other transgender women, Tharwa has a document
from the governmental Psychological Medicine Hospital, with seal from the
Ministry of Health, stating that she has GID. Not only does this document not
protect her from arrest, but the police refused to include it in her file.[37]
Human Rights Watch found this refusal to acknowledge medical reports repeated
in all 19 cases we documented where the reports were presented to the police.
In one instance that Human Rights Watch recorded, the Kuwaiti criminal court
issued a suspended six-month jail sentence to Tharwa in November 2009, even
though she submitted her medical papers confirming her GID diagnosis to the
judge.[38]

Fatwas

Islamic legal opinion in both Sunni and Shia jurisprudence
is divided on the matter of sex reassignment surgery and gender correction,
although several high level fatwas (rulings on a point of Islamic law given by
a recognized authority) condone it.

The leading Sunni school of theology led by Al-Azhar Mosque
in Cairo has issued at least one legal interpretation recognizing the
legitimacy of seeking sex change operations. In a 1988 fatwa, the late Egyptian
Grand Mufti of the Al-Azhar, Mohammad Sayed Tantawi, issued an edict in
response to a request by Sally (Sayid) Abdallah Mursi, a transsexual woman
student Al-Azhar’s Medical School for Boys in
Cairo.[39] One year shy of graduation, Mursi underwent surgery and
attempted to transfer to the girl’s school, but was rebuffed. She won
two subsequent legal rulings, but the school ignored them. It also blacklisted
her from admission to other medical schools.[40]

Tantawi issued a fatwa that recognized that Mursi’s change
was necessary for her health, but required her to dress, behave, and comply
with all obligations of Islam for women, except for marital obligations, for
one year before the operation. The fatwa was the first positive Sunni ruling
about sex changes, allowing them in cases where there is a clear medical
condition, which a GID diagnosis would seem to constitute.[41]

The most prominent Shia fatwa on sex changes came in 1987 from
Grand Ayatollah Sayyed Ruhollah Musavi Khomeini, an Iranian religious leader
and politician and leader of the 1979 Iranian Revolution. For years before,
transsexual rights activist Maryam Hatoon Molkara, previously known as
Fereydoon, had been lobbying him to grant her religious authorization to
legally become a woman. After finally being granted an audience with the
ayatollah, he issued a fatwa condoning both SRS and legal gender
correction. This fatwa is widely regarded as the edict that authorizes
such operations in Iran.

In 2008 in Kuwait, senior Sunni cleric Sheikh Rashid Sa’ad
al-Alaymi issued what initially appeared to be a fatwa in a local newspaper in
which he stated that SRS should be allowed in cases where gender identity
disorder is diagnosed.[42]
Al-Alaymi’s statement, which came on the heels of the Kuwait National
Assembly’s passing the amendment to article 198, claimed it was a mistake
to accuse those with GID of “imitating a member of the opposite sex,”
because “they did not choose this of their own will or because it gives
them pleasure, but it is something that comes from God in his infinite wisdom.”[43]

However, after heavy attack from the Kuwaiti religious establishment,
Sheikh Rashid claimed the newspaper misunderstood and misattributed the
document it published in his name. In a letter to Al-Rai newspaper, Sheikh Rashid said that the statement was not a fatwa, but
research he had compiled to send to a medical doctor.[44] Religious figures in Kuwait have not issued further legal
pronouncements on the matter since the ruling.

[5]Current political groupings include the Islamic Constitutional
Movement (ICM) and the Islamic Popular Group (of the Salafi tendency), two
Sunni organizations; the Islamic National Alliance, the main faction for Shia
Muslims; the Kuwait Democratic Forum (KDF), a loose association of groups with
Nassarist and pan-Arab roots; and the National Democratic Group, composed of
generally secular progressives with liberal tendencies. The remaining
parliamentarians are independents or from tribal confederations.

[17]For example, Al-Rai TV has aired several shows discussing the
phenomenon, from social talk shows such as Wara’a Al-Abwab(Behind Closed Doors), to regular
religious education programming that tackle different issues.

[20]Bashayer Abdallah, “Aseel Al-Awadi to Al-Rai: We should not
deal with ‘imitators of women’ by passing a law to shave their
heads… this is a superficial handling of the issue,” Al-Rai, June 15, 2010,
http://www.alraimedia.com/Alrai/Article.aspx?id=209703&date=15062010
(accessed July 15, 2011).

[27]“Al-Tabtabai: Imprisoning third sex and boyat is a law I am
proud of,” online video clip, YouTube , April 25,
2010, http://www.youtube.com/watch?v=unAV4mkk3Jg&feature=related(accessed June 20, 2011).

[41]“Intersex” is a general term used for a variety of
conditions in which a person is born with a reproductive or sexual anatomy that
does not seem to fit the typical definitions of female or male. For example, a
person might be born with female external characteristics and male internal
characteristics.